Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

Writing for a unanimous Court, Justice Samuel Alito ruled that provocation could not lead to liability if the police officer’s use of force was itself reasonable. Essentially, the provocation rule fell victim to this country’s insistence on extending “qualified immunity” to agents of the state who violate the Constitution. All qualified immunity does is protect an officer or agent from being personally sued for their constitutional infringements.

There’s some nuance here that often gets overlooked when non-lawyers talk about this concept. First of all, qualified immunity doesn’t protect state actors from punishment for things they do outside their official capacity.

Qualified immunity also does not inoculate state actors from criminal charges.

In fact, if cops were more reliably prosecuted and convicted for murder when they killed people, I’d bet very few people would still be worried about qualified immunity.

And qualified immunity does not protect the state itself from liability arising from t...

But that decent reason does not justify making the Fourth Amendment damn near unenforceable. Remember, qualified immunity doesn’t come into play when the reasonableness of a search is somehow in question.

The people who defend qualified immunity are, once again, the people who claim to be worried that a cop will hesitate before taking action. But if the threat of financial punishment makes a cop think twice before violating the Constitution, I say good. Any tool available to make police think differently before violating the laws is a tool that should be put to use.

Qualified immunity cases come down to whether state agents “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” That trash language comes from the 1982 Supreme Court case Harlow v. Fitzgerald.

Honestly, how in the hell is “I didn’t know I was violating an established constitutional right” a defense to police misconduct?

Harlow created a Kafkaesque loop where litigants can’t argue that cops violated “well established” principles until a court establishes those principles have been violated. The case is like telling people they can’t open a bank account without money, but it won’t give people money until they open a bank account. And that loop was made worse in 2009 when Samuel Alito, writing for a unanimous court, issued a ruling in Pearson v. Callahan. That case made it more difficult for litigants to get established constitutional principles on the record, thus making it functionally impossible to prove that a cop violated one.

Our Constitution, like that of nearly every other modern nation-state, waves away this inherent conflict between the state’s necessary rights to violence, and the citizen’s inalienable right to self-defense, by making a distinction between legitimate and illegitimate uses of state power. The government is allowed to use violence to accomplish certain agreed-upon goals, and nobody is allowed to violently object. But the state is not allowed to do just anything.

That’s what living in a “nation of laws” is supposed to mean: I don’t have to fight the state, and I don’t have to wait for God to raise me up in the afterlife, because I can sue the pants off the state right now. I’ll take my mansion up front, thank you very much.

I hope people can see that we could stop police brutality in five seconds, if we wanted to. It’s really not that complicated.

The Fourth Amendment does all the work.

Boom. Make stopping people because they’re Black an “unreasonable search.” Make shooting people because they’re Black an “unreasonable seizure.” Make “shall not be violated” include actually prosecuting cops and holding them personally accountable when they violate these principles. The way to fix the police was written into our Constitution before there were even police in need of fixing.

Who the hell calls the cops when they are the ones in violation of a city ordinance? A white person does. A white person who knows that the cops are there to protect her privilege, not enforce the law and keep the peace.

Think about why the right against self-incrimination is included in the Fifth Amendment at all. It’s there, entirely obviously, to stop the government from beating confessions out of people. Constitutional scholar Jed Rubenfeld says it plainly in a Yale Law Journal article: The core Application Understanding of this Clause is well-known: It prohibited the kind of interrogation practice found in certain seventeenth-century English courts such as the Star Chamber, where an individual was placed under oath, asked if he was guilty of a crime, and subject to severe punishment for refusing to answer. In seventeenth- and eighteenth-century thought, this practice put guilty defendants in a tight spot. They faced three unattractive options: incriminate themselves and go to jail; lie and condemn themselves to hell as perjurers; or, refuse to answer and go to jail anyway.

If we believe that a person should not be compelled to incriminate himself, then there’s no good reason to try to parse legitimate ways to force a person into confessing.

In the real world, the strength of your Fifth Amendment protections depends on your level of legal education or exposure to the law. I know to never talk to the police without an attorney present, because I’ve been to law school. Every lawyer, every person who had a lawyer for a parent, every person who made it through a first-year course on criminal law knows not to talk to the police, no matter what the police offer you in exchange for talking. If the police suspect you of a crime, get a lawyer. If the police don’t suspect you of a crime, shut up before you talk yourself into becoming a suspect.

Your constitutional rights aren’t supposed to change depending on whether you know they exist.

But here, as Justice John Marshall Harlan II pointed out in his dissent, Warren invents from whole cloth a requirement to inform people of their rights. Indeed, if we’re now in the business of informing people of their rights, I have some things I would like the cops to say before they search your home, or vehicle, or shoot you in the back for jaywalking or selling loosies.

While Warren’s opinion did talk about looking at the “totality of the circumstances” of an interrogation to determine if rights were violated, in practice, the Miranda warnings have become a dumb and reductive prophylactic that law enforcement uses to sanitize otherwise unconstitutional interrogation tactics.

More than that, most people believe confessions are true. Most people do not understand how easily a reasonable person can be compelled into giving a false confession, absent actual physical torture or some kind of well-defined mental incapacity.

Most people think what happened to the Central Park Five was wrong but have not thought critically about how to prevent it from ever happening again.

Reyes confessed to acting alone, but we don’t just have to take Reyes’s word on the matter. First of all, his confession was given with the advice of counsel, instead of the confessions wrested out of the Exonerated Five without an attorney present.

People sometimes forget that when police and prosecutors hone in on the wrong people, when they coerce false confessions, they allow actual criminals to go free and commit additional crimes.

Prosecutors have qualified immunity too. Even when one like Fairstein violates constitutional rights and helps to falsely imprison kids for a decade, she can’t be sued for damages.

The Fifth

There are too many people in law enforcement who treat the right against self-incrimination like a technical obstacle to overcome, instead of an ancient right that is not to be violated. There are too many people who think the right to counsel is a trick to subvert justice, as opposed to the linchpin to make sure justice is done.

If the Fifth Amendment recognizes the right against self-incrimination, then we should stop asking people to incriminate themselves. Why is that hard to understand?

In 1825, John and Elizabeth Whitehead divided their Manhattan, New York, farmland into two hundred lots and began selling it off.

The Whiteheads ended up selling half of their plots to Black people. The little enclave they made was known as Seneca Village. According to census data in 1855, Seneca Village had 264 residents, three churches, three cemeteries, and two schools.

To be eligible to vote in New York State in the 1850s, Black men needed to be a male landowners in possession of $250 worth of property and have state residency for three years. Neither the property nor residency requirements applied to white men. Seneca Village was a way for some Black men to meet that property requirement.

By 1857, however, the entire area had been razed to the ground. The homes and churches were demolished, and the people were scattered. Seneca Village did not fall to some natural disaster, or even the ubiquitous mob of angry whites that show up, again and again, throughout American history to lynch Black people who seem to be getting ahead. No, Seneca Village was destroyed because in 1853 New York passed a law allowing for the construction of Central Park.

Seneca Village was a small and arguably unnecessary part of the 775 acres of land set aside by legislature to create the park.

The government had the authority to buy or “take” the land for Central Park, under the doctrine of eminent domain that is enshrined in the Fifth Amendment of the Constitution. Eminent domain is the theory that all land, even private property, can be acquired by the government if it is in the public interest.

To understand eminent domain, you have to appreciate that if you start from first principles, all land is “public.” All land is just there, owned only by whoever or whatever happens to be standing on it, and can physically defend it, at a particular time.

Unlike private property, eminent domain does flow naturally and inevitably from the concept that ownership exists only insofar as the state is able to secure and defend the territory. If the state needs your land for some public purpose, and you can’t raise an army to oppose the state, your land is forfeited. Living in a state that is willing to pay for private land it needs to take is just a modern invention for property owners who could otherwise get screwed if they happen to live on land the state needs.

What I can tell you is that when white people want your shit, they will take it, and Black people will rarely be justly compensated for the destruction of their wealth.

Much of the heat on the right is over what constitutes a taking at all. Eminent domain certainly refers to physical takings: you had some land and now you don’t. But arguably eminent domain should also come into play when the government dictates how you are allowed to use your property. These are called “regulatory takings,” and they happen when, say, the government declares your private property a national historical site and thus prevents you from demolishing it and building a CVS.

If you know anything about Republicans, you understand why the right-wingers get up for this fight, and you can see why liberals are generally on the side of the government when it comes to eminent domain. We need things like wind turbines and historical sites much more than we need libertarians bitching and moaning about whether they received enough of a vig from the government for their troubles.

Kelo v. City of New London. Conservatives complain about this case more than Pharaoh complained about Yahweh. The case is about a white lady, Susette Kelo, who didn’t want to sell her pink house. In a twist to the standard eminent domain case, New London, Connecticut, wanted to acquire her land to then sell it to a private developer, which created a Supreme Court battle. In a controversial 5–4 decision, the liberal wing of the court, joined by Anthony Kennedy, ruled that taking private property and then selling it to private interests for economic redevelopment was indeed a constitutional use of the government’s eminent domain power.

Reluctantly, I agree with the Republicans about this issue. Clarence Thomas, in dissent in Kelo, said that the majority was converting the “public use” allowed by the Fifth Amendment into any vague promise of a “public purpose.” And, God help me, I think Thomas was right about that.

My issue with Kelo is that centering this issue on a white homeowner and the legal distinction between public “use” versus “purpose” ignores entire Black and brown communities that have been wiped off the damn map by the government’s use of eminent domain. Where’s the movie about Seneca Village? Where’s the movie about the Black and Latino renters who get crushed every time the local team wants a new stadium? Where’s the movie about all the people and communities who were destroyed by former New York City parks commissioner Robert Moses?

I’m sorry I just can’t get up for this lawyer fight between public use and public purpose, when the government’s definition of public “use” is so often merely “playthings for white people,” as if that’s an acceptable constitutional definition of the term.

Robert Moses is responsible for so much of how modern cities look and feel, and not just in New York because his methods were imported and copied throughout the country. Moses was a destroyer of Black and brown communities. And eminent domain is what allowed that asshole to be racist at an industrial scale.

His main tactic for acquiring land for his projects was identifying vulnerable minority or immigrant communities, declaring their homes and land “blighted,” and then using the government’s power of eminent domain to evict people from their homes over their objection and for a fraction of what their communities were actually worth.

Moses would target a community, have state assessors declare it a “slum,” and acquire the land through eminent domain at cut-rate prices. And it’s a method many cities and states would copy under the guise of “urban renewal.”

And so, instead of displacing two white families who didn’t even use their land as their primary residence, the city went forward with a new plan that included displacing over two hundred Black people in Seneca Village who had built up an independent Black community on some of the only land they were allowed to purchase. All of the tricks that would later be deployed against Black communities in the twentieth century were used against the people of Seneca Village in the nineteenth century.

By the 1700s, William Blackstone (the OG of legal pundits) wrote in his Commentaries on the Laws of England that the jury trial was an indispensable barrier between the rights of the people and the whims of the king because “the truth of every accusation … [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion.”